[Full disclosure: As a zoning and development lawyer, I spent years reviewing, critiquing and commenting on the Green Code (in the Buffalo News, ArtVoice, Buffalo Law Journal, etc.). I also spent nearly a decade representing property owners in the vicinity of the Elmwood/Forest intersection in opposition to various proposed projects and in an effort to prevent demolition of the 11 buildings at that intersection. I met with and shared my concerns with Councilmember Feroleto regarding both the Green Code and the Chason Affinity project as far back as November 2015.]

Joel P. Feroleto was sworn in as Delaware District councilmember on September 1, 2015. When asked to describe the role of a Common Council member, he answered: “to be there for their constituents, and resolve all their issues.”

During the first few months of Joel’s service on Buffalo’s Common Council, the State’s Historic Preservation Office [SHPO] was in the process of deciding whether a significant portion of the Delaware District, nestled on the east side of Elmwood Avenue, was worthy of preservation and placement on the State and National Register of Historic Places. During the review process, SHPO received only a handful of letters objecting to the designation. Two of the objections were from Carl Paladino and William Paladino on behalf of Ellicott Development. A third objection was from an affiliate of the Chason Affinity companies, Affinity Elmwood Gateway Properties, owners of eleven properties located on the southeast corner of Elmwood and Forest avenues. [You can find the objection letters at pages 582, 583, and 587 of the Elmwood Historic District (East) application packet.Elmwood Historic District EAST application.]

In December 2015, SHPO concluded that the 2,540 properties comprising the “Elmwood Historic District (East)” met the National Register criteria, and in March 2016 the Elmwood Historic District – East was officially entered in the National Register of Historic Places. As expressed in the public announcement, “[T]he National Park Service’s National Register of Historic Places is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect America’s historic and archeological resources.”

As SHPO explained in a December 2016 letter to the City of Buffalo, a critical factor in determining whether a group of structures merits preservation and placement on the state and national Historic Register is whether they are part of a highly intact collection of historically interrelated buildings. From the perspective of our state’s historic preservation office, each structure, by its existence, contributes to the overall historic environment, whether or not it individually possesses significant historic, cultural, or architectural value. [See SHPO’s 12-19-2016 letter.]

In March 2016, a century or so after the Elmwood Historic District (East) was first developed, the Elmwood neighborhood was remarkably “intact” – more than ninety-six percent (96%) of its buildings were still in existence and considered “contributing properties” worthy of inclusion on the National Register.

You might think that Joel Feroleto, as the Delaware District councilmember, would aggressively fight to preserve each and every contributing building in the historic Elmwood district. You would be wrong.

On March 11 of this year, a pair of Elmwood Village two-family residences, 619 and 621 W. Delavan Avenue, were demolished. Both structures were identified as “contributing” properties in the Elmwood Historic District (East). Councilmember Feroleto, it appears, chose to do nothing to stop this destruction and the resulting diminution of the larger historic district.

As noteworthy as the 2016 designation of the Elmwood Historic District (East) as a National Historic District may be, placement on the National Register was apparently much less significant to Mr. Feroleto than the fact that the buildings were owned by Ellicott Development. According to state records, between October 2016 (the same month the Paladinos expressed their objection to placement of their Elmwood Village properties on the National Register) and September 2018, the various Ellicott Development entities made nine campaign contributions, totaling $1,450, to Joel Feroleto.

Even more troubling, Mr. Feroleto took no meaningful action to insulate eleven century-old structures at the corner of Elmwood and Forest avenues from the proverbial wrecking ball. All eleven buildings were listed as “contributing properties” in the Elmwood Historic District (East). These contiguous properties were owned by another objector to the National Register designation, the Chason Affinity companies. Rather than being viewed as a valuable historic resource, it appears that these structures were considered – by Chason Affinity and Feroleto – as nothing more than obstacles to the developer’s plans for the massive “1111 Elmwood” mixed-use project.

It was September 2016 when Chason Affinity submitted its formal application to City Hall in furtherance of the Elmwood/Forest project. Within 20 days of that filing, Feroleto received a $500 donation from the property owner, another $500 from the project’s architectural firm, and $250 from the law firm representing Chason Affinity. [See Feroleto for Council contributions.] Over the following two years, Feroleto was the recipient of additional contributions from the property’s owner, a principal of Chason Affinity, and the project’s general contractor, as well as a second donation from Chason Affinity’s law firm.

[Note: In case you’re wondering, Councilmember Feroleto also has received significant contributions from other developers and businesses who have had substantial projects approved or under consideration by City Hall. For example: Dash Markets ($3,500), Sinatra ($1,500, TM Montante ($1,000), and Benderson Development ($750).]

Ironically, when asked why he has been unwilling to take steps to protect historic Elmwood Village structures from the wrecking ball, Feroleto points to the “Green Code” – the city’s zoning and development ordinance adopted in 2017. According to the councilmember, the Green Code was intended to expedite the zoning process by eliminating layers of review. In the instance of the proposed W. Delavan Ave. demolitions, complying with the code resulted in no public input.

Conveniently forgotten by Feroleto was another purported goal of the Green Code, one that motivated many Buffalonians to advocate on behalf of the proposed new zoning law: “Respect traditional development patterns… and preserve the city’s architectural heritage and the physical context that supports it.” Also disregarded by the Delaware District councilmember was his role, as a member and sole attorney on the city’s Common Council. in crafting and adopting the Green Code.

The zoning law approved by Joel Feroleto intentionally places economic development as a higher priority than the quality of life of residents and preservation of historic neighborhoods. And, the Green Code omits language formerly included in Buffalo’s zoning ordinance which expressly stated that “demolition of structures for reasons other than to preserve public health, safety and/or welfare are not encouraged.” More significantly, Mr. Feroleto rejected the recommendation from his own community working group that the Green Code require that any demolition in the Elmwood Village business district obtain Planning Board and Common Council approval.

The slow-to-act councilmember recently claimed to be researching an amendment to the Green Code requiring a public hearing – not at the Common Council, but at the Planning Board – when similar demolitions are proposed in a historic district. Obviously, such intentions (if sincere) were “too little, too late.”

Effective options were available if Joel Feroleto had truly wished to serve Delaware District residents and preserve the history and character of the Elmwood Village prior to the Elmwood/Forest and W. Delavan demolitions. He could have swiftly and aggressively requested that the Common Council enact a moratorium barring any demolition (other than for safety reasons) until the councilmembers could consider and vote on an amendment to the Green Code which would require a public hearing and Common Council approval for demolitions within any city or national historic district.

In my opinion, Joel didn’t take any aggressive steps to protect the historic integrity of the Elmwood Village for a simple reason: his “constituents” are the wealthy and the politically-connected developers and businesses, not the ordinary citizen. While he chose to disregard the protective measures proposed by his own community working group prior to adoption of the Green Code, he was certainly “there” for Chason Affinity and Ellicott Development. And, he certainly “resolved their issues” – the pesky presence of century-old structures.

The residents of the Elmwood Village and Delaware District deserve much better. They’ll have an opportunity to do something about that in the voting booth later this year.

As you probably know, Maritime Charter School wants to build a three-story, 65,000-square-foot high school building, and a 24,000-square-foot pre-fabricated athletic building (large enough for three full-size basketball courts) at the rear of its existing two-story middle school at 102 Buffum Street (the former Public School No. 70).

The proposed “expansion” and addition of a high school would negatively impact nearby residents and the ability to peacefully enjoy life in the Buffum Street neighborhood, and threatens the sanctity of lands long held sacred by indigenous groups:

– NYS’s Historic Preservation Office has described the 102 Buffum Street parcel as having “high cultural, historic and archeological sensitivity” due to the likelihood that the Mission House (school) of the Buffalo Creek Indian Reservation was located at the site, and its proximity to the Seneca Indian Park (burial grounds). Archeological resources of great significance to Native American communities, including human remains, could be disturbed if expansion is allowed. See SHPO 06-19-18 letter re 102 Buffum.

– According to Maritime, if the expansion project goes forward, there would be 5 times as many students and faculty at the Buffum Street site, increasing from the current 105 and an estimated 525.

– Maritime’s transportation plan estimates that the combined middle school/high school would bring an average of 104 vehicles to 102 Buffum Street (not counting yellow school buses) each school morning. That’s one car every 35 seconds during the morning rush hour. Nearly as many vehicles would be leaving the Buffum Street site during the peak afternoon rush hour.

– If Maritime’s varsity sports teams play any games at the Buffum Street site, neighborhood residents would experience traffic, parking, and noise issues beyond normal school hours.

– An expanded Maritime school would need an additional 57 parking spaces, and, as a result, the beautiful green lawn and majestic trees on the east side of the existing school building would be removed and be replaced by an asphalt parking lot.

– The number of buildings would increase from 1 to 3. The foundations of the two new buildings would expand beyond the existing paved area at the rear of the school and onto the grassy slope and a portion of the wooded area. These changes would increase the rainwater that runs off the parcel, adding to existing drainage and flooding problems for Zittel Ave. yards. See Charter school addition site plan

City Hall officials, including South District Councilmember Christopher Scanlon, ignored these potential impacts to the Buffum Street neighborhood when they approved the Maritime charter school’s expansion plans this past May and June. Recently, as you may have heard, Maritime asked the City’s Common Council to rescind its June 2018 approval of a “special use permit” which allowed construction of the new high school and athletic buildings. On October 2nd, without any chance for the public to speak, the Common Council – led by Mr. Scanlon – complied with Maritime’s request, rescinding the prior approval. See

Maritime and the Common Council claim that the approval of the expansion plans was set aside so that Maritime can pursue an archeological examination of the Buffum street site. This explanation just isn’t logical. As owner of 102 Buffum Street, Maritime undoubtedly has the right to conduct an archeological study without rescinding the special use permit approval. It’s their land.

From my perspective, the real reason for rescinding the approval is so that the City and Maritime can have a “do-over” – clean up the mistakes the City made when rushing to approve the expansion plans in May and June, and then re-approve the same plans for a new high school building and athletic facility. Maritime’s letter requesting the rescission states, “Maritime still intends to undertake the Project…”

As a lawyer who has spent nearly 30 years representing residents in land use and environmental matters, I have lost virtually all confidence in Buffalo City Hall’s willingness and ability to comply with zoning and environmental review laws. Here are but a few reasons why I believe that the Buffum Street neighborhood cannot rely on City Hall to protect its interests:

Maritime school’s purchase in June 2017 was financed 100% by Ellicott Development, the Paladino family company, and Ellicott Development plans on constructing (and, profiting from) the expansion project. Councilmember Scanlon is deeply connected to the Paladinos. For example, public records show that he received at least 17 political contributions from Paladino-related individuals and entities between Aug. 2012 and Feb. 2016. See Scanlon contributions from Ellicott Development 2012-2016

At the Common Council’s June 2018 public hearing, a respected Native American activist advised Scanlon and company of the potential desecration of human remains if the expansion was allowed, and two residents raised concerns regarding traffic, loss of trees, drainage, and neighborhood character. At the close of the hearing, Scanlon stood up, did not mention any of the issues raised by the public, and advised the council that he supported the project. [Note: Scanlon, and an Aug. 17, 2018 Buffalo News editorial, mention Maritime’s reputation as an academic success when expressing support for the expansion project. However, a chart included in a recent Buffalo News article shows that Maritime’s 7th and 8th graders scored the lowest of any of Buffalo’s 12 charter schools and lower than two-thirds of the students in Buffalo’s public schools. In 2018, only 15.0% of Maritime’s tested students were proficient in ELA, and 10.1% proficient in Math.]\

Maritime’s Director of Administrative Services, David P. Comerford (who appeared on behalf of Maritime at the City’s public hearings), has deep City Hall connections. He spent years as Buffalo Sewer Authority’s General Manager, and his brother, James Comerford, Jr., is the City’s Commissioner of Permit & Inspection Services.

Background: More than a century ago, an elementary school (former Public School No. 70) was constructed three blocks east of Seneca Street on Buffum Street, a 20-foot wide residential road. The masonry building stands two-stories high, and has approximately 43,000 square feet of gross floor area.

The elementary school site is encircled by residences – nearly all of which are one- and two-family homes. The residences immediately east of the school pre-date the 1915 construction of former School No. 70. The homes across the street from the project site on Buffum Street, and on Indian Orchard Place and Silverdale Place (one-block long dead-end streets) were built during or prior to the 1920s. The scale of the two-story elementary school building is in harmony with the neighboring residences.

In October 2016, Buffalo’s Common Council – including Mr. Scanlon – approved the sale of the then-vacant school building (along with vacant land to the rear of 102 Buffum Street) to an affiliate of Ellicott Development for $975,600. According to City of Buffalo documents, it was the developer’s intentions to renovate the property for an estimated $390,000, lease it to an existing charter school, and construct a new 45,000 sq. ft. building which would include a gym. No mention was made of a plan to construct a high school building at the site.

WNY Maritime Charter School began operating its “middle school” at 102 Buffum Street in September 2017. The middle school has approximately 81 students and 24 faculty members. Buffalo’s online property information website identifies the charter school as the current owner of the property, and also indicates that the facility is fully exempt from taxes as an education institution.

Current Proposal: On May 1, 2018, William Paladino, as CEO of Ellicott Development Company, submitted a packet to the City of Buffalo on behalf of its “client” – WNY Maritime Charter School. The October 2016 plan to construct “a new building including a gym (45,000 sq. ft.) and an athletic field” has transformed into a proposal “to construct a new 3-story classroom building” (64,913 sq. ft.) and “athletic facility addition” (24,050 sq. ft.) including “3 full size basketball courts.” [See Charter school Special Use Permit packet 05-10-18.]

Neighborhood concerns: Ellicott Development’s new proposal represents a significant increase in both the scale of development and the intensity of land use at the 102 Buffum Street site:

(a) The number of buildings would triple from 1 to 3.

(b) The gross floor area would triple in size from 43,000 sf to 132,000 sf.

(c) The maximum building height would increase from 2-stories to 3-stories.

(d) The current total of 105 students and faculty at the site would explode to 525 (450 students/75 faculty), five-times its current population.

(e) A beautiful grassy lawn on the east side of the existing school, graced by 8 to 10 mature trees, would be paved over to add an additional 57 parking spaces.

As expressed during a June 5, 2018 public hearing before the Common Council’s Legislation Committee (with Mr. Scanlon in attendance), the proposed Maritime charter school expansion threatens to adversely impact several aspects of the environment protected by the State Environmental Quality Review Act (SEQRA):

Impact on Land. SEQRA’s regulations expressly include “a substantial change in the intensity of use of land” as one of the “indicators of significant adverse impacts on the environment.” The stark contrasts between existing conditions at the site and the proposed addition of a high school building, athletic facility, and parking area reflect – in quantifiable terms – a substantial increase in both the scale of development and the intensity of use of the site.

Impact on Traffic. Although the City Planning Board casually spoke of road capacity “adequate to service any increase in traffic,” Buffum Street is not Seneca Street or a busy commercial thoroughfare. To the contrary, 102 Buffum is located three blocks from Seneca, in the heart of a residential neighborhood, where the principal public street is only 20 feet wide, cars purposely park over the curb because of the narrowness of the thoroughfare, and two of the adjacent streets (Indian Orchard and Silverdale) are one-block long dead ends. Traveling on Buffum Street becomes more difficult, even treacherous, during the winter months. School buses – with only 81 students currently attending the school – already have a difficult time maneuvering around each other as they approach and depart the school. Note: The developer’s unsupported premise that 90% of the high school students will be using public transportation to get to and from the school seems unrealistic and self-serving. And, no consideration has been given to the capacity of either the on-site parking spaces, or adjacent residential streets, to safely handle added traffic when the Maritime high school functions as “home team” for its basketball and other varsity games.

Impact of Existing Neighborhood/Community Character. The above-noted substantial increase in the scale of development and the intensity of use of the site will also have a significant adverse impact on the existing character of the surrounding neighborhood of modest one- and two-family residences. [See 6 NYCRR 617.2(l), 617.7(c)(1)(v).] Their scale and architectural features are in harmony with the two-story existing school building, and are incompatible with the size and sterile façade proposed for the 3-story new classroom building. Additionally, the existing character of the surrounding residential neighborhood will be adversely impacted by the sheer number of students and faculty that would be coming to the site daily – estimated at a combined 525 individuals – starting at approximately 7:15 AM when the buses and autos begin to arrive.

Impact on historical, archeological, and aesthetic resources. The mature trees and green lawn east of the existing school building are a significant aesthetic resource to this neighborhood, enjoyed by the residents who live across the street from the school property, passers-by, and, presumably, the staff and students at the Maritime middle school. This important aesthetic resource – which took generations to reach its current state – would be eliminated in-a-blink-of-an-eye if the proposed project is approved, replaced by a large, noise-producing, exhaust-creating parking lot. Note: Although the Planning Board meekly attached as a condition to its site plan approval the following, “All mature trees must be saved where possible,” it is inconceivable that the developer would not claim that the vast majority of the majestic trees (with their extensive root systems) must be removed to ensure a safe, efficient movement of vehicles into and out of the new parking lot. The project site is located within a couple hundred feet of the Seneca Indian Park, a site deemed sacred and part of a much larger area used historically as a burial ground by the Seneca Nation and others. Historians believe that in 1819 the first Seneca Mission house was built by Christian missionaries at the site of the former School No. 70 – that is, the subject parcel. While the developer and the Planning Board acknowledge that the proposed action is in an “archeologically sensitive area,”a “Phase 1” archeological survey has not been conducted.

Construction-related adverse impacts. Construction-related traffic, noise, dust, etc., would have a profound impact on the quality of life of the surrounding residents for many, many months.

Scanlon’s response: The South District’s Common Council member sat passively throughout the comments made by the public on June 5, showing neither interest, nor concern. But Mr. Scanlon made certain that he expressed support, on the record, for Ellicott Development’s proposed project at the close of the hearing. As reported by WBFO:

“… South Buffalo Common Councilmember Chris Scanlon says the project would be a good addition, especially saving the long-closed School 70. ‘If it continued that way, it would eventually have fallen into a state of disrepair,’ says Scanlon. ‘Here we have a[n] entity, a school, which has a wonderful reputation, which is bringing life back to that building and which will inject the South Buffalo community with a couple hundred bodies each and every day, and they’re further investing between $10-$15 million in that location, which will further revitalize the Seneca Street Corridor.’”

Scanlon’s comments ignore several relevant facts. The presence of the middle school students and faculty has already brought “life back to that building” – life commensurate with the scale of both the century-old building and surrounding residential neighborhood. The building was not in significant disrepair when purchased by the Maritime school, and would almost certainly have been an attractive target for conversion into apartments or condominiums given the current momentum by developers to breathe life into Seneca Street. Also, whatever purported benefit “a couple hundred bodies each and every day” would have on the broader South Buffalo community, it is disingenuous, at best, to imply that attracting over 500 individuals a day, every day, would improve the quality of life for the human beings – homeowners and renters – who call the adjacent streets “home.”

One last point needs to be made. Scanlon not only ignored the concerns of his constituents who will bear the burden of placing a high school in their midst, he disregarded the questionable process used by his political contributors – I mean – Ellicott Development, and its client, WNY Maritime Charter School:

(1) Ellicott Development and the Maritime charter school engaged in a bait-and-switch transaction when the sale of the property was before the Common Council in October 2016, expressing a desire to construct one 45,000 sq. ft. building to house a gymnasium, and then replacing that scenario with a plan to add a 65,000 sq. ft. high school building (three-stories in height), a 24,000 sq. ft. athletic facility, and nearly 5 dozen additional parking spaces.

(2) The filing of site plan documents that omitted important and necessary information concerning existing conditions on- and off-site: the location and scale of the nearby residences; the location of driveways on Buffum Street; and, the number and location of the “established trees” on site.

(3) Despite a grassy front lawn approximately 48’ deep, the developer violated the Green Code’s “posted notice” requirement by ignoring the mandate to post a sign “clearly visible from” and “within 10 feet” of Buffum Street. Instead, the public notice was hidden in a classroom window more than 50’ from Buffum Street, obscured by the glare and light reflecting off the school window.

It appears to me that Councilmember Scanlon is more interested in protecting the interests of the developer (who also happens to be an early and faithful campaign contributor), than preserving the quality of life and existing character and historical significance of the surrounding residential neighborhood.

With All Due Respect,

Art Giacalone

I moved from East Aurora to South Buffalo in June 2015 – June 17, to be exact. [You’ll understand the reason for such specificity as you read this posting.]

I half-jokingly told my friends at the time that the primary motivation for my landing in South Buffalo was so that I could run against Carl P. Paladino for the Park District seat on the City of Buffalo’s Board of Education. I was sick and tired of his bullying, vitriol, and conflicts-of-interest. In reality, it was the prices of homes in the Queen City’s trendier neighborhoods, and a desire to live as close as possible to my teenage son in East Aurora, that led me to my humble-but-charming century-old home several blocks from Cazenovia Park.

But my belief that the residents – and, most especially, the children – of South Buffalo were not being well-served by Paladino’s act pre-dates my daily walks down Indian Church Road, across Seneca Street, and around Caz park. In fact, in March 2015, after reading yet another example of what I viewed as an endless stream of ill-conceived and unnecessary confrontations by The Carl, I posted a piece at this blog titled, “Dear Park District Voters, Please Don’t Re-elect Carl Paladino in 2016.”

To my chagrin, I discovered – not long after settling into my new home, neighborhood, and community – that I would not be eligible to run for the Park District seat in May 2016. Although I was a U.S. citizen, had never been convicted of a felony, and was a qualified voter of the Buffalo City School District (and, had been a resident of the City of Buffalo for approximately nineteen years prior to moving to East Aurora in 1996), I couldn’t meet two qualifications: “a resident of the city school district for three years and a resident of the [Park District] for a period of one year preceding the date of the election.” [See NYS Education Law, Section 2553(1).]

Mr. Paladino won an unexpectedly competitive race in March 2016. The most that I could do at the time was vote for his youthful opponent. The thought of three-more-years of Carl was distressing. And waiting until May 2019 for the next opportunity to seek the Park District seat – when I would unequivocally meet all of the requirements – seemed interminable.

So I decided to look for ways to personally assist and get to know the challenges facing the students in Buffalo’s public schools. During the summer of 2016, I responded to a call for volunteers from Read To Succeed Buffalo. The organization did not have arrangements at that time (they will this coming year) to place reading tutors/mentors in any of South Buffalo’s schools. But I’ve had the good fortune of spending two extremely rewarding and informative years volunteering twice a week at the Waterfront Elementary School, where I get to interact with a diverse group of bright, energetic second-graders.

As most of you are aware, Carl Paladino was removed from the Buffalo BOE in August 2017 by the State Education Commissioner, MaryEllen Elia. As succinctly described by Buffalo News reporter Jay Rey, the disciplinary action was taken against Paladino “for publicly disclosing private information from a School Board executive session – which happened in the wake of his inflammatory comments about former President Barack Obama and his wife, Michelle.”

When the Board of Education solicited applicants to fill the vacant Park District seat in August 2017, I was unable to apply, shackled by the three-year City of Buffalo residency requirement. But I was pleased by the BOE’s unanimous choice of pediatric psychologist Catherine Flanagan-Priore to fill Carl’s place on the board. She brought a fresh perspective, and I looked forward to a new, more-placid, and productive era for the Buffalo school district, one devoid of the drama and discord associated with Mr. Paladino’s tenure.

Meanwhile, I have continued my own efforts to become more familiar with the day-to-day workings of Buffalo’s public schools. For the past year, I have worked as a Substitute Teacher in more than a dozen elementary schools throughout the city, spending a majority of my time in South Buffalo schools. The experience has been eye-opening in many ways, and on many levels.

But back to Buffalo’s BOE. Good times don’t seem to last all that long on the eighth floor of Buffalo City Hall. Last month – on May 16, 2018, to be exact – the Park District once again found itself without a member on the Buffalo Board of Education. Catherine Flanagan-Priore abruptly resigned her seat. As reported by local media, the Park District board member resigned on May 16 to protest the manner in which the BOE handled a new nursing contract (a board decision adversely impacting Flanagan-Priore’s employer, Kaleida Health).

The remaining members of the Buffalo’s BOE have 30 days from the date when the vacancy occurred to fill the open seat with a qualified person (or the Mayor, subject to confirmation by the Common Council, makes the appointment). That means that a majority of the board must select Ms. Flanagan-Prior’s replacement by June 16, 2018.[See Education Law Section 2553(10(n).]

My current residency in the City of Buffalo will not reach three successive years until June 17, 2018, the day after the BOE’s deadline for appointing the new Park District member.

Being the proverbial “day late” is a bummer. While I would have preferred that the respected child psychologist not have resigned at all, I can’t help but wish that she would have made the decision a bit less impulsively, or, at a minimum, had given her fellow board members some notice and made the resignation effective later in the month of May. Had either option occurred, the three-year residency deadline would have been pushed beyond June 17, 2018.

I am not in any way suggesting that I would have been the best qualified of the prospective applicants for this unexpected opening, or that a majority of the remaining eight board members would have chosen me as the new Park District member. But I certainly would have appreciated an opportunity to be interviewed by the BOE. And, had I been appointed, I would have been honored – and, humbled – to join the BOE members and undertake the challenge, on behalf of South Buffalo’s residents, to improve the City of Buffalo’s public school system.

While it may not be in any official capacity, I am ready, willing, and able to assist the current BOE members, and whomever is appointed to the vacant Park District seat, to further the interests of Buffalo’s students.

With All Due Respect,

Art Giacalone

An open letter to Carl Paladino, former member of the City of Buffalo Board of Education:

Dear Carl,

Now that the Buffalo Board of Education has filled the seat you formerly held, I hope that you will set aside your legal battles – as difficult a decision as that may be – and focus your energy and desire to strengthen our community in a more constructive manner.

A significant segment of parents and residents of the city you proudly call home are exhausted by the torrent of acrimony and unpleasant news that has come to define their public school district. And the children of Buffalo will continue to be adversely affected if tax dollars are used – not to improve the quality of education – but to pay lawyers defending litigation you have brought in state and or federal courts.

Most importantly, I know how important your family is to you. As you stated in a Buffalo News article this past June, you regret the shame that you brought on your children following your controversial comments about Barack and Michelle Obama.

As long as you are battling Buffalo’s Board of Education (or, some of its members) in a public arena, the people of this city – and your family – will be reminded of, and embarrassed by, your incendiary words.

One need not journey to a former confederate state to be confronted by forceful symbols of the white supremacist movement.

Travelers on Indian Church Road, a block from Seneca Street in South Buffalo – whether on foot or bicycle or in a car – are reminded daily of that fact:

The immediate “target” of this flag-waving expression of free speech are – it appears – the non-white attendees of the church diagonally across the street from this otherwise well-kept South Buffalo residence:

There is no doubting the aggressive intent of the display of two large and one small confederate battle flags and a small “don’t tread on me” flag. A sign placed in the midst of waving flags proclaims to anyone who approaches the house: “WARNING – IF YOU CAN READ THIS, YOU ARE IN RANGE.” Here is an (admittedly, poor-quality) image of the sign:

It was reassuring to learn that three elected officials who represent South Buffalo (where I have lived the past two years) – South District Common Council Member Chris Scanlon, Erie County Legislator Patrick Burke, and State Senator Tim Kennedy – participated in a prayer vigil on Wednesday August 16th in Durham Memorial AME Zion Church on Buffalo’s East Side. According to Buffalo News reporter Harold McNeil, speakers in attendance vowed that the hatred and bigotry that descended on Charlottesville on August 12th “will not be allowed to happen here.”

I sent an email to Messrs. Scanlon, Kennedy and Burke on August 17th, forwarding photos of the confederate flag display on Indian Church Road. So far, Pat Burke has responded, and he has expressed his interest in going to speak with the owner of the flag display. I also had a constructive phone conversation this afternoon with a member of Tim Kennedy’s staff.

It is not clear to me what we can and should be doing in Buffalo when we experience symbolic expressions of racial animosity and resentment. I fully acknowledge the “right” of Americans to display whatever flags they wish. But, I also recognize that we – citizens and our elected officials – must find ways to reach out to our neighbors and family members to begin and sustain meaningful dialog and discussions to constructively address the learned hatred and biases that permeate all-too-much of our local and national psyche.

“No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.” ― Nelson Mandela, Long Walk to Freedom

With All Due Respect,

Art Giacalone

P.S. I’m apparently not the only Western New Yorker to see a connection between the Charlottesville-spurred discussions concerning symbols of the Confederacy, and the toppling of Mr. Paladino from his high horse. See the whimsical cartoon drawn by the uber-talented Adam Zyglis – titled “Finally Removed” – posted at the Buffalo News website on August 17, 2017: http://buffalonews.com/2017/08/17/adam-zyglis-finally-removed/.

[If you are interested in the “retaliatory First Amendment claim” asserted by attorney Dennis Vacco on behalf of the controversial Carl Paladino, please see my column, “Did Carl Paladino engage in protected free speech?” in the July 10, 2017 print version of the Buffalo Law Journal, and on-line here.]

What do Carl Paladino, school board member, developer and former gubernatorial candidate, and Mark Chason, developer and president of the Chason Affinity Companies, have in common?

They both turned to former State Attorney General Dennis C. Vacco and the firm where he is a partner, Lippes Mathias Wexler Friedman LLP, for legal representation.

What is stunningly different in Mr. Vacco’s representation of his two clients?

In his current role as the lawyer representing Mr. Paladino in the proceedings to remove Mr. Paladino from the Buffalo School District’s Board of Education, Mr. Vacco is a champion of the First Amendment’s Free Speech clause.

In stark contrast to his free speech advocacy on behalf of Mr. Paladino, Mr. Vacco appeared oblivious to a lawyer’s First Amendment rights when he argued several years ago on behalf of the Chason Affinity subsidiary, Affinity Elmwood Gateway Properties LLC, for a gag order restricting the freedom of speech of his opposing counsel in a civil lawsuit.

Affinity was plaintiff in litigation brought to extinguish deed restrictions from 1892 on Chason Affinity’s properties at the southeast corner of Elmwood and Forest avenues in the City of Buffalo. I was the opposing counsel who had displeased Mr. Chason (“Of course, if it wasn’t for him there would be a beautiful development on Elmwood.”), and, as a result, was aggressively pursued by a handful of lawyers at the Lippes Mathias firm, including Dennis Vacco. They sought – through the use of a Temporary Restraining Order – not only to bar my communications with Kaleida Health, a non-party health care provider, but also to prevent me from contacting the City of Buffalo regarding property maintenance violations at Affinity’s Elmwood Avenue properties. Their accusations against me bordered on the preposterous, and included baseless claims that I had violated the New York Rules of Professional Conduct.

The events that transpired in “His Honor’s” courtroom from November 2012 through March 2013 are detailed in the Appellants’ Brief that I prepared to challenge the temporary restraining order and subsequent “permanent” order issued by Michalek at the behest of Dennis Vacco and his colleagues at Lippes Mathias. The series of court orders precluded me from communicating with Kaleida Health, concerning the subject matter of the deed restriction lawsuit.

In the end, I spent 409 days – from November 20, 2012 through January 2, 2014 – with my First Amendment right to free speech restricted by the “gag order” pursued by Mr. Vacco on behalf of Mark Chason’s development company. Fortunately, on January 3, 2014, the New York State Appellate Division, Fourth Department, ruled unanimously that the lower court had “abused its discretion” when Michalek prohibited me from communicating with Kaleida Health, and struck down the impediment to my free speech. “Justice” Michalek’s orders were so clearly contrary to the court rule relied upon by the lower court, that the appellate court didn’t need to address the constitutional issues raised in the appeal. [Note: Courts prefer not to render decisions based on constitutional claims if lesser laws or regulations can provide the basis for their rulings.]

I find the contrast between Carl Paladino’s words that the former State Attorney General finds worthy of First Amendment protection, and the letter-to-the-editor that I wrote that led to the prior restraint of my free speech rights, so striking that I’ll set them out here:

Obama catches mad cow disease after being caught having relations with a Herford (sic). He dies before his trial and is buried in a cow pasture next to Valerie Jarret, who died weeks prior, after being convicted of sedition and treason, when a Jihady cell mate mistook her for being a nice person and decapitated her.

Michelle Obama. I’d like her to return to being a male and let loose in the outback of Zimbabwe where she lives comfortably in a cave with Maxie, the gorilla.

…

ARTHUR GIACALONE’S LETTER TO THE EDITOR, PUBLISHED 09-10-2012 IN THE BUFFALO NEWS, THAT MR. VACCO CLAIMED IN OPEN COURT WAS “SCURRILOUS” (in other words, vulgar and evil):

August 28, 2012

Re: Affinity is a risky choice for Kaleida/Gates Circle

Dear Editor:

Chason Affinity’s proposal to re-use the Millard Fillmore Gates Circle Hospital site as a veterinarian teaching hospital may well be “visionary.” But more than an inspired idea will be needed if Kaleida Health is to reach its laudable goals for re-use of the prominent landmark.

The expressed purpose of Kaleida’s million-dollar development competition was to “get the best ideas and the most capable developers to do something great” with the hospital site – great for the neighborhood, city, developer and Kaleida. For that goal to be met, Chason Affinity will need to substantially up its game from its performance the past several years at the southeast corner of Elmwood and Forest avenues.

In 2007, with vague plans to construct student housing, a Chason Affinity subsidiary signed a contract to buy several century-old buildings at Elmwood and Forest. A year-and-a-half later, despite a risky financial market, a group of unhappy neighbors, and deed restrictions prohibiting “any business establishment,” Affinity proceeded with the purchase, spending nearly $2 million for eleven parcels. When the developer subsequently announced its vision for the “gateway to the Elmwood Village,” it proposed construction of a 6-story, 175,000 square-foot “mixed use” project poorly suited for the neighborhood, rather than the creative re-use of the quintessential “Elmwood Village” properties.

Unable to convince the adjoining owners to approve its project, Affinity is now in court seeking to extinguish the restrictive covenants that protect its neighbors. During the intervening years, the developer’s properties have been allowed to deteriorate in plain sight of residents, commuters and tourists. Affinity has been recently cited for code violations at eight of its properties.

Chason Affinity may have won the competition, but Kaleida may want to think long and hard before designating it the developer of the Gates Circle site.

Sincerely,

Arthur J. Giacalone

In case you are curious, Kaleida Health did end up rethinking its approach to the former Millard Fillmore Gates Circle Hospital site “after Chason Affinity was unable to recruit a veterinary school as previously planned.” [See Kaleida Health Press Release issued 09/24/2013.]

With all due respect,

Art Giacalone

APPENDIX:

The “SCHOOL BOARD MEMBER CODE OF CONDUCT” of the City of Buffalo Board of Education provides the following: “As a member of my Board of Education, I will strive to improve public education, and to that end I will:… (g) Abide by the District’s Code of Ethics.

The “CODE OF ETHICS FOR BOARD MEMBERS AND EMPLOYEES OF THE BUFFALO CITY SCHOOL DISTRICT” expressly states: “V. REQUIREMENTS … (h) Confidentiality Requirements of Public Information and Records: (i) No board member or employee shall disclose confidential information acquired by them in the course of their official duties to further their personal interests or the interests of anyone in his/her family. (ii) No Employee or Board Member shall disclose the following matters discussed in executive session: (4) Discussions regarding proposed, pending or current litigation; (5) Collective negotiations under the Taylor Law;…

Section 306 of the state’s Education Law empowers the Commissioner to remove a school officer (including a member of a board of education), after a hearing (with the right of representation by counsel), “guilty of any willful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or willfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education.” Section 2559 of the Education Law confirms that “for cause shown” – and after giving notice and opportunity of defense – the commissioner of education may remove any member of a board of education for “willful disobedience of any lawful requirement of the commissioner of education, or a want of due diligence in obeying such requirement or willful violation or neglect of duty.”

Also, Section 805-a of the state’s General Municipal Law [GML] expressly states that “No municipal officer or employee shall: … (b) disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interest.” A “municipal officer or employee” is defined to include “members of any administrative board, commission or other agency” – whether paid or unpaid – and, “municipality” expressly includes a school district. GML Section 805-a(2) provides the following: “In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate this section may be fined, suspended or removed from office or employment in the manner provided by law.”

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This blog's author, Arthur J. Giacalone, does not intend or consider the communications at this blog to be ATTORNEY ADVERTISING. The primary purpose of the communication is not for the retention of Mr. Giacalone's legal services. [See definition of "Advertisement" at Part 1200, Rules of Professional Conduct, Rule 1.0(a).] Nonetheless, in case the proper authorities choose to treat this web site as ATTORNEY ADVERTISING, the street address, phone number and email address of the law office of Arthur J. Giacalone are: 17 Oschawa Avenue, Buffalo, New York 14210; (716) 436-2646; AJGiacalone@twc.com.